# Virendra Goel v. Union of India

- **Citation:** Application U/S 482/378/407 Cr.P.C. No. 61 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-22
- **Case number:** Application U/S 482/378/407 Cr.P.C. No. 61 of 2020
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-goel-v-union-of-india-46353
- **Pages:** 11

## Headnote

(A) Criminal Law- Prevention of Money
Laundering Act, 2002 (PMLA) - Section
3/4 - Section 19 -Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - the - power to
arrest - Section 44(1)(C) - offence triable
by Special courts - Section 45 - Offence
be cognizable and non - bailable - Section
88 Cr.P.C. - power to take bond for
appearance - does not confer any right
on the accused to enforce for accepting
the bond - confer a discretion on the
Court concerned whether to accept bond
from the accused or from a person
appearing
in
the
Court
or
not
-
Prevention of Corruption Act, 1988 (PC) -
Section 13(2) read with Section 13(1)(d)
- Indian Penal Code, 1860 - Sections 120B and 409 IPC - application of an accused
in the case relating to PML Act - in
respect of granting bail or furnishing
bond
-
has
to
be
considered
in
accordance with the provisions contained
in the CrPC - applications of the
petitioner and other co-accused for
releasing them on furnishing bonds -
rejected - no error in the impugned order.
(Para-27,31,33)

The petitioner and other co-accused moved an
application before Sessions Judge/Special Judge,
PMLA for allowing them to furnish bonds to the
satisfaction of the PMLA Court in Complaint Case
instead of taking them in custody and dealing with
their bail applications etc. - learned Special Judge
rejected the applications of the petitioner and other
co-accused for releasing them on furnishing bonds -
accused were issued summon for appearance under
Section 3/4 of the Prevention of Money Laundering
Act, 2002 - they did not appear - issued non-bailable
warrants . (Para-1,2)

HELD:- A person accused of the offences
under Section 3/4 PML Act, has been issued
summon or warrant to appear before the Court,
is not a ''free agent', and mere fact that he has
1520 INDIAN LAW REPORTS ALLAHABAD SERIES
been
granted
bail
by
the
Court
in
predicate/schedule offence(s), and he was not
arrested by the Enforcement Directorate under
Section 19 during the course of investigation are
only factors to be considered at the time of
considering the bail application of the accused
by the PMLA Court, but it would not be correct
to say that he is a "free agent" and, therefore,
his bond should be accepted and he is not
required to apply for regular bail - accused are
trying to delay the trial- Special Judge, PMLA,
should take all necessary steps for their
appearance
before
the
Court
and
early
conclusion of the trial.

(Para-31,33)

Petition u/s 482 Cr.P.C. dismissed. (E7)

List Of Cases Cited:-

## Text

3-5 All. Virendra Goel Vs. Union of India
1519
unregistered, is inadmissible in evidence,
but the revisionist - defendant - tenant has
not disputed that he is occupying the
premises in question. A person, who holds
over under an unregistered agreement and
continues in possession, has to pay monthly
rent holding over as a "tenant" from monthto-month.

10. The revisionist - defendant has
utterly failed to bring on record the
documents showing the payment of monthto-month rent of the premises in question.
Only a bald averment has been made with
regard to payment of rent in cash. It has
come on record that the revisionist -
defendant is in occupation of the premises
in question without paying rent and the
same is still outstanding.

11. In view of the aforesaid facts and
circumstances of the case, the impugned
judgement & decree does not suffer from
any illegality and hence, no interference is
called for by this Court.

12. The SCC revision is, accordingly,
dismissed.
----------
(2020)03-05ILR A1519
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.01.2020

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Application U/S 482/378/407 Cr.P.C. No. 61 of
2020

Virendra Goel ...Applicant
Versus
Union of India ...Opposite Party

Counsel for the Applicant:
Anuuj Taandon, Purnendu Chakravarty
Counsel for the Opposite Party:
A.S.G., Shiv P. Shukla

(A) Criminal Law- Prevention of Money
Laundering Act, 2002 (PMLA) - Section
3/4 - Section 19 -Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - the - power to
arrest - Section 44(1)(C) - offence triable
by Special courts - Section 45 - Offence
be cognizable and non - bailable - Section
88 Cr.P.C. - power to take bond for
appearance - does not confer any right
on the accused to enforce for accepting
the bond - confer a discretion on the
Court concerned whether to accept bond
from the accused or from a person
appearing
in
the
Court
or
not
-
Prevention of Corruption Act, 1988 (PC) -
Section 13(2) read with Section 13(1)(d)
- Indian Penal Code, 1860 - Sections 120B and 409 IPC - application of an accused
in the case relating to PML Act - in
respect of granting bail or furnishing
bond
-
has
to
be
considered
in
accordance with the provisions contained
in the CrPC - applications of the
petitioner and other co-accused for
releasing them on furnishing bonds -
rejected - no error in the impugned order.
(Para-27,31,33)

The petitioner and other co-accused moved an
application before Sessions Judge/Special Judge,
PMLA for allowing them to furnish bonds to the
satisfaction of the PMLA Court in Complaint Case
instead of taking them in custody and dealing with
their bail applications etc. - learned Special Judge
rejected the applications of the petitioner and other
co-accused for releasing them on furnishing bonds -
accused were issued summon for appearance under
Section 3/4 of the Prevention of Money Laundering
Act, 2002 - they did not appear - issued non-bailable
warrants . (Para-1,2)

HELD:- A person accused of the offences
under Section 3/4 PML Act, has been issued
summon or warrant to appear before the Court,
is not a ''free agent', and mere fact that he has
1520 INDIAN LAW REPORTS ALLAHABAD SERIES
been
granted
bail
by
the
Court
in
predicate/schedule offence(s), and he was not
arrested by the Enforcement Directorate under
Section 19 during the course of investigation are
only factors to be considered at the time of
considering the bail application of the accused
by the PMLA Court, but it would not be correct
to say that he is a "free agent" and, therefore,
his bond should be accepted and he is not
required to apply for regular bail - accused are
trying to delay the trial- Special Judge, PMLA,
should take all necessary steps for their
appearance
before
the
Court
and
early
conclusion of the trial.

(Para-31,33)

Petition u/s 482 Cr.P.C. dismissed. (E7)

List Of Cases Cited:-

1. Babu Lal & ors. Vs. Smt. Momina Begum,
Criminal Misc. Application No.8810 of 1989

2. Parasnath Dubey & ors. Vs. St. of U.P. & ors.,
Criminal Misc. Application No.8811 of 1989

3. Anand Deo Singh Vs. St. of Bihar, 2000 SCC
OnLine Pat 311

4. Sanjay Chandra Vs. CBI, 2011 OnLine Del
2365

5. Pankaj Jain Vs. U.O.I & anr., 2018 (5) SCC
743;

6. Arun Sharma Vs. U.O.I., 2016 SCC Online
P&H 5954;

 7. Madhu Limaye & anr. Vs. Ved Murti & ors.,
1971 AIR 2486;

8. Nikesh Tarachand Shah Vs. U.O.I. & anr.,
(2018) 11 SCC Page-1.

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. This petition under Sections 482 of
the Code of Criminal Procedure, 1973 has
been filed, impugning the order dated 12th
November, 2019 passed by the Sessions
Judge/Special Judge, PMLA, Lucknow on
applications filed by the petitioner and
other co-accused for allowing them to
furnish bonds to the satisfaction of the
PMLA Court in Complaint Case No. 9 of
2017 instead of taking them in custody and
dealing with their bail applications etc.

2. The petitioner and other co-accused
had been summoned for 29.01.2018 by the
Court for appearance and participation in
trial for offences under Section 3⁄4 of the
Prevention of Money Laundering Act, 2002
(hereinafter referred to as the ''PML Act').
The petitioner and other co-accused did not
appear
in
person
on
29.01.2018
in
compliance of summoning order before the
Court, however, their counsels appeared on
the date fixed, and sought sometime to file
applications
necessary
for
putting
appearance and furnishing bonds etc. on the
ground that the petitioner and other coaccused were already released on bail in
schedule offence(s), and they had not
misused the liberty.

It was further contended that the
Enforcement Directorate did not arrest the
petitioner during the investigation under
Section 19 PML Act. It was also contended
that the trial of schedule offence(s) as well
as offence(s) under PML Act should be
jointly conducted by the Court as provided
under the provisions of Section 44(1)(C)
PML Act. The Special Court, however,
vide order dated 29th January, 2018 did not
grant any relief, as prayed for, and issued
non-bailable warrants against the petitioner
and other accused.

3. The petitioner, instead of appearing
before the Special Court, approached this
Court by way of filing Petition No. 509 of
2018 under Section 482 CrPC, praying
therein that the proceedings of Complaint
3-5 All. Virendra Goel Vs. Union of India
1521
Case No. 9 of 2017 initiated by the
Enforcement Directorate before the Special
Judge, PMLA/Sessions Judge, Lucknow be
quashed, and secondly that the petitioner
should be directed to furnish personal bond
to the satisfaction of the Court concerned in
the aforesaid complaint case, and the Court
be directed to accept the same. However,
during the course of arguments, the first
prayer was not pressed.

4. This Court, vide order dated 13th
February, 2018, without expressing its
opinion on merit of the case, disposed of
the said 482 petition, providing the
petitioner to move an application before the
learned Special Judge, PMLA through
counsel within a week under Section 88
CrPC read with Section 45 PML Act, and,
it was provided that the learned Special
Judge should deal with the application
strictly in accordance with law.

It was further provided that till the
decision on the said application, nonbailable
warrant
issued
against
the
petitioner vide order dated 29th January,
2018 would not be given effect to.

5.

Pursuant
to
the
aforesaid
opportunity granted by this Court, the
petitioner and other co-accused moved
applications before the Special Judge,
PMLA, Lucknow, praying therein that the
Special Court should accept the bonds or
personal bonds under the provisions of
Section 88 CrPC read with Section 45 PML
Act.

6. The Sessions Judge/Special Judge,
PMLA, vide impugned order dated 12th
November,
2019
has
dismissed
the
applications filed by the petitioner and
other co-accused in the light of judgment
dated 23rd March, 2006 passed by the
Division Bench of this Court in Criminal
Misc. Application No.8810 of 1989 ''Babu
Lal and others Vs. Smt. Momina Begum'
and Criminal Misc. Application No.8811 of
1989 ''Parasnath Dubey and others Vs.
State of U.P. and others'. This Court had
issued Circular Letter No.33 of 2006 dated
7thAugust, 2006, circulating the judgment
dated 23rd March, 2006 for its strict
compliance. The relevant portion of the
judgment dated 23rd March, 2006, which is
contained in the Circular Letter No. 33 of
2006 dated 7th August, 2006 has been
reproduced by the learned Special Judge in
the impugned order.

7. The Division Bench of this Court,
in the aforesaid judgment, had held that in
cases which were governed by Sections
436 and 437 CrPC, the provisions of
Section 88 CrPC would not be applicable
for the reason that Section 436 and 437
CrPC are specific provisions which deal
with particular kind of cases, whereas
scope of Section 88 CrPC is much wider.
The case, in which Section 436 CrPC is
applicable, an accused has to appear before
the Court, and thereafter, only the question
of granting bail would arise. It had been
further held that where summon or warrant
to an accused was issued, the procedure
under Section 436 and 437 CrPC would be
necessarily followed, and summon or
warrant, as the case may be, had to be
executed and honoured.

8. The learned Special Judge, PMLA,
in the impugned order has further held that
the cases relating to schedule offence(s)
and offence(s) under PML Act are mutually
exclusive and, therefore, the benefit given
in schedule offence(s) cannot be extended
to the offence(s) of money laundering. The
Special Judge has, thus, rejected the
applications filed by the petitioner and
other co-accused.
1522 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The proceedings of Complaint Case
No. 9 of 2017 pending before the Special
Judge, PMLA, Lucknow relates to a mega
scam of several hundred crores known as
National Rural Health Mission (hereinafter
referred to as "NRHM") scam in Uttar
Pradesh.

10 Allegation, against the petitioner
and other co accused, is that they were
involved a criminal conspiracy and in
furtherance thereto they misappropriated an
amount of Rs. 2.94 Crores approximately
in supplying computers and peripherals by
M/s HCL Infosystems Limited, Lucknow
to NRHM.

11. The CBI had registered an FIR on
2nd January, 2012 under Sections 120-B
and 409 IPC and Section 13(2) read with
Section 13(1)(d) Prevention of Corruption
Act, 1988 (hereinafter referred to as ''PC
Act') against the petitioner and other coaccused. The FIR was registered by the
CBI in compliance of the order dated 15th
November, 2011 passed by this Court in
Writ Petition No. 3611 (M/B) of 2011
(PIL) and connected Writ Petition No.2647
(M/B) of 2011 (PIL).

12. In sum and substance, allegations
are that Mr. G.K. Batra, the then Managing
Director,
Shreetron
India
Limited,
Lucknow, a subsidiary of U.P. Electronic
Corporation Limited (a State Government
Undertaking), Mr. Virendra Goel, the
present accused, proprietor of M/s Axis
Marketing,
New
Delhi,
Mr.
Neeraj
Upadhyay, Proprietor of M/s Radhey
Shyam Enterprises, Lucknow and Mr.
Avichal Mishra, Executive of M/s HCL
Infosystems Limited, Lucknow and other
unknown persons entered into a criminal
conspiracy and in furtherance thereto
misappropriated an amount of Rs.2.94
Crores by showing undue favours to private
firms.

13. In pursuance of the tendered
notice,
three
firms
viz.
M/s
HCL
Infosystems Limited, Lucknow, M/s Axis
Marketing, New Delhi and M/s Radhey
Shyam Enterprises, Lucknow submitted
their bids, which were opened on 7th
August, 2009. The lowest bidder was M/s
HCL Infosystems Limited, Lucknow and,
thus, the work of supplying computers and
peripherals was given to M/s HCL
Infosystems Limited, Lucknow. Strangely
enough,
after
getting
the
order
for
supplying the computers and peripherals,
the HCL Infosystems Limited, Lucknow
informed that supply would be made
through M/s Axis Marketing, New Delhi
and M/s Radhey Shyam Enterprises,
Lucknow, and both the firms would supply
50% each of the items. Shreetron India
Limited made the total payment of Rs.7.49
Crores to M/s Axis Marketing, New Delhi
and M/s Radhey Shyam Enterprises,
Lucknow. However, the said two firms
made payment of only Rs.4.55 Crores to
M/s HCL Infosystems Limited and they,
caused a pecuniary loss of Rs.2.94 Crores
to the NRHM scheme. These accused had
misappropriated balance amount of Rs.2.94
Crores.

14. Investigation under the provisions
of
PML
Act
was
undertaken
by
Enforcement Directorate vide order dated
14th April, 2012 to investigate the offence
of money laundering with reference to
predicate offence(s) initiated vide FIR
dated 2nd January, 2012 registered by the
CBI in which the CBI had filed chargesheet against four accused.

15. The investigation under the PML
Act pertained to generation of proceeds of
3-5 All. Virendra Goel Vs. Union of India
1523
crime by causing wrongful loss of Central
Government funds allotted under the
National Rural Health Mission Scheme in
supply of 951 computers and peripherals
through M/s Shreetron India Limited at an
exorbitant price. The investigation under
the PML Act has revealed that a sum of
Rs.1,29,21,903/-, which is the ''proceeds of
crime' in terms of Section 2(1)(u) o PML
Act, was in possession of Mr. V.K. Batra,
son of Late G.K. Batra, Mr. Virendra Goel,
Smt. Nidhi Upadhyay, wife of Mr. Neeraj
Upadhyay and Mr. Neeraj Upadhyay.

16. The assets acquired by the
aforesaid persons from the "proceeds of
crime" were attached vide order dated
15thJanuary, 2015.

17. After investigation, a complaint
case was filed, which is Complaint Case
No. 9 of 2017 pending before the Sessions
Judge/Special Judge, PMLA, Lucknow.

18. Heard Mr. Purnendu Chakravarty,
learned counsel representing the petitioner,
as well as Mr. Shiv P. Shukla, learned
counsel representing the respondents.

19. Learned counsel for the petitioner
has submitted that Section 45 PML Act
provides for release of an accused on bail
or on his own bond. The release of any
accused on bond has been incorporated
under section 45 of the PML Act because if
the accused would be on bail in the
schedule offence(s) and, the complaint by
the Enforcement Directorate is filed under
the PML Act in respect of the same
predicate offence, no purpose would be
served in sending the accused in custody
for offences under PML Act and, under
these circumstances the accused should be
released on bond. He has submitted that
circumstance for release on bond under
Section 45 PML Act would be that if the
Enforcement Directorate did not arrest the
accused under Section 19 PML Act during
the course of investigation and in the
predicate offence(s) accused is on bail, then
the accused should be released on bond
inasmuch as custody of the accused would
not be required during trial and, therefore,
no purpose would be served by sending the
accused in jail and, then he would be
required to apply for regular bail. The
learned counsel has placed reliance on the
following judgments in support of his
contentions:-

i) Pankaj Jain Vs. Union of
India and another, 2018 (5) SCC 743;

ii) Arun Sharma Vs. Union of
India, 2016 SCC Online P&H 5954;

iii) Madhu Limaye and another
Vs. Ved Murti and others, 1971 AIR 2486;

Besides,
Nikesh
Tarachand
Shah Vs. Union of India and another
(2018) 11 SCC Page-1.

20. The learned counsel for the
petitioner has further submitted that as per
Section 44 (1)(C) PML Act trials of cases
in relation of predicate offence(s) and
offence(s) under the PML Act are to be
conducted by the same Court.

21. Per contra, Mr. Shiv P. Shukla,
learned
counsel
appearing
for
the
Enforcement Directorate, has submitted
that the offence(s) under the PML Act are
cognizable and non-bailable. He has
submitted that a person, who is facing trial
for non-bailable offence(s), cannot be
released on furnishing bond. The learned
counsel has further submitted that the
judgment of the Punjab-Haryana High
Court in Arun Sharma Vs. Union of India
has been held to be not correctly decided
by the Supreme Court in its judgment in the
1524 INDIAN LAW REPORTS ALLAHABAD SERIES
case of Pankaj Jain Vs. Union of India and
another (supra).

22. The learned counsel for the
Enforcement Directorate has further submitted
that Section 88 CrPC confers discretion on the
Presiding Officer of the Court. Section 88 CrPC
does not confer any enforceable right to an
accused that he must be released on furnishing
bond. The predicate/schedule offence(s) and
offence(s) under the PML Act are mutually
exclusive. An accused does not become entitled
automatically to be released on furnishing bond
if the Court has granted him bail in schedule
offence(s). Further Section 44 PML Act
provides for transfer of trial of case under
predicate offence to the Court of Special Judge
on an application by the prosecution. It does not
give any right to the accused to ask for transfer
of the case under predicate offence(s) before the
Special Judge. It is for the prosecution to decide
whether it would be appropriate, convenient
and in the interest of justice that the trial of
schedule offence(s) and offence(s) under PML
Act should be held by the same Court or not.
The learned counsel has further submitted that
the fact that the petitioner had been granted bail
in the predicate offences by the concerned
Court, and he was not arrested under Section 19
PML Act during the course of investigation
would be the circumstances to be considered
while deciding the bail application, but these
factors do not confer a right to an accused to be
released on furnishing bond or he should be
allowed to furnish bond.

23. I have considered the submissions
advanced by the counsels representing the
respective parties and perused the record.

24. The question, which falls for
consideration, is whether an accused facing trial
for offences under the provisions of Section 3⁄4
PML Act is entitled to be released on furnishing
bond under Section 45 PML Act read with
Section 88 Code of Criminal Procedure if he
has been granted bail in the predicate/schedule
offence(s) and, he was not arrested under
Section 19 PML Act during the course of
investigation by the Enforcement Directorate.
Section 45 PML Act provides that the offences
under the PML Act are cognizable and nonbailable.

25. The Supreme Court in Nikesh
Tarachand Shah Vs. Union of India's case
(supra) had struck down the two conditions
mentioned in section 45 for grant of bail
i.e. the Public Prosecutor has to be given an
opportunity to oppose an application for
release on bail and the Court must be
satisfied where the Public Prosecutor
opposes the application that there are
reasonable grounds for believing that the
accused is not guilty of such offence(s) and
that he is not likely to commit any offence
while on bail. Para-54 of the aforesaid
judgment, on reproduction, reads as under:-

"54.Regard being had to the
above, we declare Section 45(1) of the
Prevention
of
Money-Laundering
Act,
2002, insofar as it imposes two further
conditions for release on bail, to be
unconstitutional as it violates Articles 14
and 21 of the Constitution of India. All the
matters before us in which bail has been
denied, because of the presence of the twin
conditions contained in Section 45, will
now go back to the respective courts, which
denied bail. All such orders are set aside,
and the cases remanded to the respective
courts to be heard on merits, without
application
of
the
twin
conditions
contained in Section 45 of the 2002 Act.
Considering
that
the
persons
are
languishing in jail and that personal liberty
is involved, all these matters are to be
taken up at the earliest by the respective
courts for fresh decision. The writ petitions
3-5 All. Virendra Goel Vs. Union of India
1525
and
the
appeals
are
disposed
of
accordingly."

The aforesaid decision has no
bearing to the controversy involved in the
present case.

26. Section 45 PML Act of post
decision in Nikesh Tarachand Shah reads
as under:-

"45. Offences to be cognizable
and non-bailable.--(1) [Notwithstanding
anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), no person
accused of an offence 107 [under this Act]
shall be released on bail or on his own
bond unless--]

(i) the Public Prosecutor has been
given an opportunity to oppose the application
for such release; and

(ii) where the Public Prosecutor
opposes the application, the court is satisfied
that there are reasonable grounds for believing
that he is not guilty of such offence and that he
is not likely to commit any offence while on
bail:

Provided that a person, who, is
under the age of sixteen years, or is a woman or
is sick or infirm [or is accused either on his own
or along with other co-accused of moneylaundering a sum of less than one crore
rupees], may be released on bail, if the Special
Court so directs:

Provided further that the Special
Court shall not take cognizance of any offence
punishable under Section 4 except upon a
complaint in writing made by--

(i) the Director; or

(ii) any officer of the Central
Government or a State Government authorised
in writing in this behalf by the Central
Government by a general or special order
made in this behalf by that Government.

[(1-A)
Notwithstanding
anything
contained in the Code of Criminal Procedure,
1973 (2 of 1974), or any other provision of this
Act, no police officer shall investigate into an
offence under this Act unless specifically
authorised, by the Central Government by a
general or special order, and, subject to such
conditions as may be prescribed.]

(2) The limitation on granting of bail
specified in [* * *] sub-section (1) is in addition
to the limitations under the Code of Criminal
Procedure, 1973 (2 of 1974) or any other law
for the time being in force on granting of bail.

[Explanation.--For the removal of
doubts, it is clarified that the expression
"Offences to be cognizable and non-bailable"
shall mean and shall be deemed to have always
meant that all offences under this Act shall be
cognizable offences and non-bailable offences
notwithstanding anything to the contrary
contained in the Code of Criminal Procedure,
1973, and accordingly the officers authorised
under this Act are empowered to arrest an
accused without warrant, subject to the
fulfilment of conditions under Section 19 and
subject to the conditions enshrined under this
section.]"

27. Section 46 PML Act provides that
the provisions of CrPC, including the
provisions as to the bails or bonds, shall
apply to the proceedings before Special
Court and for the purposes of such
provisions, the Special Court shall be
deemed to be a Court of Session. Section
65 PML Act further provides that the
provisions of CrPC shall apply in so far as
they
are
not
inconsistent
with
the
provisions of this Act, in arrest, search,
seizure,
attachment,
confiscation,
investigation and prosecution and all other
proceedings under this Act. Thus, from a
conjoint reading of Section 45, 46 and 65
PML Act, it is clear that the provisions of
the CrPC would be applicable in the
proceedings before the Special Court,
including the provisions of bails or bonds
1526 INDIAN LAW REPORTS ALLAHABAD SERIES
and also would be applicable in respect of
arrest,
search,
seizure,
attachment,
confiscation, investigation and prosecution
and all other proceedings under this Act.
Thus, the provisions of CrPC have been
made applicable even in respect of granting
bail or furnishing bond, as the case may be.
The application of an accused in the case
relating to PML Act has to be considered in
accordance with the provisions contained in
this regard in the CrPC. Section 88 CrPC
reads as under:-

"Section 88. Power to take bond
for appearance. When any person for
whose appearance or arrest the officer
presiding in any Court is empowered to
issue a summons or warrant, is present in
such Court, such officer may require such
person to execute a bond, with or without
sureties, for his appearance in such Court,
or any other Court to which the case may
be transferred for trial."

28. The Supreme Court had an
occasion to consider Section 91 of CrPC,
1898 similar to provisions of Section 88
new Code of 1973 in Madhu Limaye and
another Vs. Ved Murti and others (supra)
1970
(3)
SCC
739.
The
following
observations were made in context of
Section 91:-

".....................In fact section 91
applies to a person who is present in Court
and is free because it speaks of his being
bound over, to appear on another day
before the Court. That shows that the
person must be a "free agent" whether to
appear or not. If the person is already
under arrest and in custody, as were the
petitioners, their appearances depended
not on their own volition, but on the
volition of the person, who had his
custody............. ."

29. The Punjab-Haryana High Court
in Arun Sharma Vs. Union of India, relying
on the said observations of the Supreme
Court in the case of Madhu Limaye and
another, has held that in a situation where
the accused were not arrested under Section
19 of the PML Act during the course of
investigation and were not produced in
custody for taking cognizance, Section 88
CrPC shall apply upon appearance of the
accused person on their own volition before
the trial Court to furnish bonds for their
appearance.

30. A person, who has been issued
summon or warrant to appear before the
Court, cannot be said to be a ''free agent'.
The Supreme Court in Pankaj Jain Vs.
Union of India and another (supra) has
dealt with the judgment of the PunjabHaryana High Court in paras-27 to 29, and
in para-29 it has held as under:-

"29.In the Punjab & Haryana
case, the High Court has relied on
judgment
of
this
Court
inMadhu
Limayev.Ved Murti[Madhu Limayev.Ved
Murti, (1970) 3 SCC 739] and held that
Section 88 shall be applicable since
accused were not arrested under Section 19
of PMLA during investigation and were not
taken into custody for taking cognizance.
What the Punjab & Haryana High Court
missed, is that this Court in the same
paragraph had observed "that shows that
the person must be a free agent whether to
appear or not". When the accused was
issued warrant of arrest to appear in the
court and proceeding under Sections 82
and 83 CrPC has been initiated, he cannot
be held to be a free agent to appear or not
to appear in the court. We thus are of the
view that the Punjab & Haryana High
Court has not correctly applied Section 88
in the aforesaid case."
3-5 All. Virendra Goel Vs. Union of India
1527

31. The Supreme Court in the
aforesaid judgment has also held that the
words used in Section 88 confer a
discretion on the Court concerned whether
to accept bond from the accused or from a
person appearing in the Court or not. This
Section does not confer any right on the
accused to enforce for accepting the bond.
Thus, since the judgment of the PunjabHaryana High Court in Arun Sharma,
(supra) does not lay down correct law, the
petitioner ca not claim benefit of the same.
A person accused of the offences under
Section 3/4 PML Act, has been issued
summon or warrant to appear before the
Court, is not a ''free agent', and mere fact
that he has been granted bail by the Court
in predicate/schedule offence(s), and he
was not arrested by the Enforcement
Directorate under Section 19 during the
course of investigation are only factors to
be considered at the time of considering the
bail application of the accused by the
PMLA Court, but it would not be correct to
say that he is a "free agent" and, therefore,
his bond should be accepted and he is not
required to apply for regular bail.

32. Provisions to bail and bond are
provided in Chapter-XXXIII of the Cr.P.C. The
special provisions contained in ChapterXXXIII of the Code cannot be made to
rendered
otiose
by
interpreting
general
provision of Section 88 of the Code. When a
person is accused of cognizable and nonbailable offence, his bail application has to be
dealt with the provisions contained in Chapter
XIII of the Code. The Supreme Court in Pankaj
Jain Vs. Union of India (supra) in paras-24 and
25 has approvingly quoted the judgments of
Delhi High Court in Sanjay Chandra Vs. CBI,
2011 OnLine Del 2365 and Patna High Court
in Anand Deo Singh Vs. State of Bihar, 2000
SCC OnLine Pat 311, which are reproduced
hereunder:-

"24. Another judgment of the Delhi
High Court in Sanjay Chandra v. CBI
[SanjayChandra v. CBI, 2011 SCC OnLine Del
2365] decided on 23-5-2011 supports the
submission raised by the learned Additional
Solicitor General that power under Section 88
CrPC, the word "may" used in Section 88
CrPC is not mandatory and is a matter of
judicial discretion. Paras 20, 21 and 22 of the
judgment are to the following effect: (SCC
OnLine Del)

"20.
Learned
Shri
Ram
Jethmalani and learned Shri K.T.S. Tulsi,
Senior Advocates appearing for accused
Sanjay Chandra, learned Shri Mukul
Rohatgi, Senior Advocate appearing for
accused Vinod Goenka, learned Shri Soli
Sorabjee and learned Shri Ranjit Kumar,
Senior Advocates appearing for accused
Gautam Doshi, learned Shri Rajiv Nayar,
Senior Advocate appearing for accused
Hari Nair and learned Shri Neeraj Kishan
Kaul, Senior Advocate appearing for
accused Surendra Pipara, at the outset,
have contended that the order of learned
Special Judge dated 20-4-2011 rejecting
the bail of the petitioners is violative of the
mandate of Section 88 CrPC. It is
contended that admittedly the petitioners
were neither arrested during investigation
nor were they produced in custody along
with the charge-sheet as envisaged under
Section 170 CrPC. Therefore, the trial
court
was
supposed
to
release
the
petitioners on bail by seeking bonds with or
without sureties in view of Section 88
CrPC. Thus, it is urged that on this count
alone, the petitioners are entitled to bail.

21. The interpretation sought to
be given by the petitioners is misconceived
and based upon incorrect reading of
Section 88 CrPC, which is reproduced
thus:

''88. Power to take bond for
appearance.--When any person for whose
1528 INDIAN LAW REPORTS ALLAHABAD SERIES
appearance or arrest the officer presiding
in any court is empowered to issue a
summons or warrant, is present in such
court, such officer may require such person
to execute a bond, with or without sureties,
for his appearance in such court, or any
other court to which the case may be
transferred for trial.'

22. On reading of the above, it is
obvious that Section 88 CrPC empowers
the court to seek bond for appearance from
any person present in the court in exercise
of its judicial discretion. The section also
provides that aforesaid power is not
unrestricted and it can be exercised only
against such persons for whose appearance
or arrest the court is empowered to issue
summons or warrants. The words used in
the section are "may require such person to
execute a bond" and any person present in
the court. The user of word "may" signifies
that Section 88 CrPC is not mandatory and
it is a matter of judicial discretion of the
court. The word "any person" signifies that
the power of the court defined under
Section 88 CrPC is not accused specific
only, but it can be exercised against other
category of persons such as the witness
whose presence the court may deem
necessary for the purpose of inquiry or
trial. Careful reading of Section 88 CrPC
makes it evident that it is a general
provision defining the power of the court,
but it does not provide how and in what
manner this discretionary power is to be
exercised. The petitioners are accused of
having committed non-bailable offences.
Therefore, their case for bail falls within
Section 437 of the Code of Criminal
Procedure which is the specific provision
dealing with grant of bail to an accused in
cases of non-bailable offences. Thus, on
conjoint reading of Sections 88 and 437
CrPC, it is obvious that Section 88 CrPC is
not an independent section and it is subject
to Section 437 CrPC. Therefore, I do not
find merit in the contention that order of
the learned Special Judge refusing bail to
the petitioners is illegal being violative of
Section 88 CrPC."

25. Another judgment which is
relevant in this context is the judgment of
the Patna High Court in Anand Deo Singh
v. State of Bihar [Anand Deo Singh v. State
of Bihar, 2000 SCC OnLine Pat 311 :
(2000) 2 PLJR 686] . The Patna High
Court had the occasion to consider Section
88 CrPC where in para 18, following has
been held: (SCC OnLine Pat)

"18. In my considered view,
Section 88 of the Code is an enabling
provision, which vests a discretion in the
Magistrate to exercise power under the
said section asking the person to execute a
bond for appearance only in bailable cases
or in trivial cases and it cannot be resorted
to in cases of serious offences. Section 436
of the Code itself provides that bond may
be asked for only in cases of bailable
offences."

33. In view of the aforesaid
discussions, I do not find that the learned
Special Judge has committed any error in
passing the impugned order and rejecting
the applications of the petitioner and other
co-accused for releasing them on furnishing
bonds. The accused are not ''free agents' as
they were issued summon for appearance
on 29th January, 2018 and when they did
not appear, they had been issued nonbailable warrants vide order dated 29th
November, 2018. The accused are trying to
delay the trial and, therefore, it is provided
that the Special Judge, PMLA, Lucknow
should take all necessary steps for their
appearance before the Court and early
conclusion of the trial.

34. This petition stands dismissed.
3-5 All. Ali Jan Vs. State of U.P. & Anr.
1529

35. Let a copy of this order be
transmitted to the Sessions Judge/Special
Judge, PMLA, Lucknow forthwith.
----------
(2020)03-05ILR A1529
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2020

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 98 of 2020

Ali Jan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Pavan Kishore, Sri Piyush Kishore
Srivastava

Counsel for the Opposite Parties:
A.G.A.

(A)
CriminalLaw-
Negotiable
Instrument Act- Section 138 Code of
Criminal Procedure, 1973 - Section
482
-
Inherent
jurisdiction

-
Negotiable Instruments Act, 1881 -
Section
138
-

complaint
is
maintainable under only when it is
filed after due service of notice as
contemplated under Section 138 N.I.
Act.( Shakti Travel and Tours v. State
of Bihar ,2002 (9) SCC 415)(Para-5)

Notice dated 7th October, 2016 - sent by
registered post - no whisper regarding effective
service of notice at the end of the complainant
in the complaint - complainant has not
mentioned as to when he received back envelop
containing notice - whether after receiving
envelop back he had made complaint or prior to
that - In the absence of any such mention in
complaint itself - no inference of effective
service and requirement of 15 days prior notice
can be presumed to have been complied with -
pre-condition as contained under Section 138
N.I. Act has remained uncomplied with .
(Para - 4,11)

HELD:- If the service is refused or service by
absence could not be made effective, service
could be deemed sufficient as per law, but in
any case 15 days time prescribed by law should
always be fulfilled to maintain complaint under
section 138 of N.I.Act, 1881.(Para-13)

Application u/s 482 Cr.P.C. allowed.
(E-7)

List Of Cases Cited:-

1. Shakti Travel and Tours v. St. of Bihar , 2002
(9) SCC 415,

2. Deepak Kumar & anr. Vs. St. of U.P. & anr,
2006 (8) ADJ, 427

3. Nawab Singh Vs. St. of U.P. & Anr.,
Application U/S 482 No. 2604 of 2020

4. Chand Mohd v. St. of U.P, (All) 2017 5 308

5. Yogendera Pratap Singh v. Savitri Pandey &
anr., 2014 LawSuit (SC) 793

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan , J.)

1. Heard Sri Pavan Kishore and Mr.
Piyush Kishore Srivastava, learned counsel
for the applicant and learned A.G.A. for the
State.

2. Learned counsel for the applicant
and the learned A.G.A. agree that the
present application may be disposed of at
this stage without calling for further
affidavits in view of the order proposed to
be passed today.

3. By means of this 482 Cr.P.C.
application, the applicant has questioned
summoning order dated 8th March, 2017 as
well as the proceedings of complaint case